For many members, the refund amount was 80% of the equity membership fee in effect on the effective date of resignation. 3 to Ex. In the Notice, NPT explained that it was notified that any rezoning would require that the property be age restricted and require that the community include a clubhouse and a pool and that it had determined these mandated changes to the scope of the project constituted a material change under the terms of the LPA. Philmont Club's facilities also included a tennis court, swimming pool, and clubhouse. W at 27:1-10, 35:18-36:11, 46:4-8. (Compare id., with Doc. 59 at 36.) In sum, the Court finds that the Ridgewood Defendants were not parties to a business transaction under 551 or parties to a transaction under 550, and, therefore, we grant summary judgment in their favor on Counts II and III. Restatement (Second) Torts 551(1) (One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.). This is a fact basic to the transaction.) with id., illustration 4 (A sells to B a dwelling house, knowing that B is acting in the mistaken belief that a highway is planned that will pass near the land and enhance its value. (See Doc. at 36.). North Penn Towns LP v. Concert Golf Partners LLC, et al, PIERRE, BELLANDE V CONCERT INDIAN SPRING LLC, RESSEL v. UPPER PROVIDENCE TOWNSHIP (MONTGOMERY COUNTY). Accordingly, we affirm the District Court's denial of the motion for summary judgment as to the breach of contract claim. (cleaned up)); Stevenson v. Env't Servs., Inc. v. Diversified Royalty Corp., Civil No. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 1491 at 53; Doc. ), Silverman and Meyer testified that they were not aware of any damages the Club suffered by virtue of Ridgewood sharing the information with ClubCorp or Morningstar. (KARPF, ARI) (Entered: 12/31/2018), U.S. Courts Of Appeals | Other | ), On October 21, Plotnick emailed Nanula [his] initial thoughts to a structure of a deal between CGP and Ridgewood at PCC. 125-14, 173.) Pa. 2009) (collecting cases); see also First United Bank & Tr. But, at the summary judgment stage, the Court may not make credibility determinations. The fact that Nanula and CGP were not parties to PSA is of no moment, as they were agents of Concert Philmont and Concert Philmont Properties. 101-1 at 17 (citing case applying Pennsylvania law).) (Id. (Id. No. (See Doc. In examining the motion, we must draw all reasonable inferences in the nonmovant's favor. 36 to Ex. 100-5, Ex. (Doc. ), On September 12, Nanula sent several follow up questions to Silverman, which Silverman answered. (Doc. NPT also named Concert Philmont, LLC, Concert Philmont Properties, LLC, and Ridgewood Philmont, LLC as Defendants in its original Complaint. A copy of the meeting notes is available by clicking on the document to the right. M; accord id. As you also are aware, you have the option under Paragraph 3(b) of the Collateral Assignment Agreement for [NPT] to assign the AOS to NVR, Inc. Id. . at 62:16-64:3 (explaining that CGP buys and manages country clubs but that technically each country club is owned by an individual singlepurpose entity); see also Doc. This portion of Silverman's testimony largely goes to his dissatisfaction with the Concert Defendants not doing what they promised to do under the terms of the PSA (i.e., that they did not intend to follow through with the PSA, even before the PSA was executed) and Nanula's lack of honesty: This portion of Meyer's testimony relates to the capital expenditures CGP promised to make (i.e., its contractual obligations). MM at 149:22-150:4.) Concert Golf Partners is a boutique operator of private golf and country clubs headquartered in Lake Mary, FL. No. No. No. Ins. Therefore, based upon your proposal of a 60/40 split of the profits, we propose splitting all due diligence and entitlement costs 60/40 (Concert/RW). We are all-cash investors because we believe great clubs Pa. 2008), to show when there is a duty to speak under Pennsylvania law. On September 10, Silverman provided Nanula with the requested information and noted that [t]he real estate deal [was] with NVR, Inc. not Toll Brothers. (Doc. However, in 2021, Meyer testified that in or around September 2016, Ridgewood made an informal offer for $5 million for the nine-hole Property. There, the court held that the defendant, Gnagey, actively concealed eight abandoned tanks from the plaintiff, the Fund, which provided coverage to storage tank owners. 22 to Ex. W at 117:17-22; see also id. (KARPF, ARI) (Entered: 01/14/2019), (#2) NOTICE of Appearance by DAVID KORSEN on behalf of JAMES STEVENS (KORSEN, DAVID) (Entered: 01/07/2019), DEMAND for Trial by Jury by JAMES STEVENS. First, the resignation emails do not show that PCC members would have voted against the sale of the Club to CGP had they known of Ridgewood and CGP's relationship and the profits the Defendants stood to gain as a result of the deal. In analyzing the applicability of the gist of the action doctrine and determining whether a cause of action sounds in contract or tort, courts should consider whether the claim arises from breaches of duties imposed by law as a matter of social policy or from breaches of duties imposed by contracts between particular individuals. The Initial Capital Projects were to be completed within two years of the closing date (i.e., before March 2019). (See Doc. Presently before the Court are the Ridgewood Defendants' and the Concert Defendants' motions for summary judgment. UniCourt uses cookies to improve your online experience, for more information please see our Privacy Policy. . at 283:14-284:6 (explaining that at the meeting, they discussed an amendment to the AOS and it became clear to [him] through the actions of Mr. Tulio that NPT and NVR were not getting along very well and there was some indication both at that meeting and therefore that the relationship between those two entities was going to be terminated).) But it did not. W at 54:10-22 (Q: . No. the capital investments being implemented with regard to the two required capital phases under our Agreement of Sale . A.) On November 2, 2016, Nanula emailed Plotnick, I hope you guys will stand back, profess some concerns about the real estate risks, and just wait to see if I can strike a better deal for all of us here. A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, and a fact is material if it might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248. 100-5, Ex. L.) Meyer testified that around the time of the September 7 meeting and thereafter, he understood that NPT and NVR were not getting along very well and NPT or Metropolitan was thinking about terminating their relationship with NVR (Doc. (See Doc. . (See Doc. Meyer could not recall the timing of the discussion but stated that afterwards, they just came back to us and that it wasn't something that was attractive to them after, you know, they had kicked the tires for a very short time. (Id.) Nanula predicted that he would be in front of [PCC's] Board or at least Executive Committee by midNovember and will see if a consensus can be reached on our proposal. (Id.) 101-1 at 11.) 116 at 29.) Presently before the Court are Defendants' motions for summary judgment. (Doc. NPT is correct-it is undisputed that Defendants did not disclose that they were working together. U.S. Courts Of Appeals | Other | 100-28, Ex. Accordingly, the Court now turns to the Concert Defendants' remaining arguments on these Counts: first, we consider whether there was a duty to disclose, giving rise to a fraudulent nondisclosure claim under 551, and second, we consider whether there are sufficient facts to show that the Concert Defendants actively concealed their relationship with Ridgewood from Defendants and that their relationship was material to the transaction, giving rise to a fraudulent concealment claim under 550. Corp., 66 F.3d 604 (3d Cir. Co., 106 A.3d 48, 68 (Pa. 2014) (explaining that the nature of the duty alleged to have been breached . Although the dictionary gives as an example a party to the contract,' the Court does not consider that to be the universe of parties who can take part in a transaction. (quoting Black's Law Dictionary 1297 (10th ed. 464, 476 (10th Cir. However, in Bucci, the court never analyzed the Restatement (Second) of Torts 551; rather, it mentions the Restatement only once, in passing, as part of a see also cite for when a duty to speak arises. at 150:5-11. (Doc. (KARPF, ARI) (Entered: 01/14/2019), Docket(#2) NOTICE of Appearance by DAVID KORSEN on behalf of JAMES STEVENS (KORSEN, DAVID) (Entered: 01/07/2019), DocketDEMAND for Trial by Jury by JAMES STEVENS. In its response brief, NPT summarily asserts, without citation, The evidence clearly shows that the Defendants concealed their relationship and that concealment was material to the transaction at hand. (See Doc. 100-5, Ex. . 30, 2021) (finding that the gist of the action barred fraudulent inducement claim where the plaintiffs alleged that the defendant never intended to pay the plaintiffs the compensation they were promised under their contracts). Ct. 2013) ([S]ection 551 imposes liability for nondisclosure of information when the defendant has a specific duty to disclose, which arises only in certain, enumerated circumstances.). X at 65:20-66:21. We are a boutique owner-operator of upscale private golf & country clubs nationwide. CONCERT GOLF PARTNERS waiver sent on 12/31/2018, answer due 3/1/2019; CONCERT PHILMONT, LLC waiver sent on 12/31/2018, answer due 3/1/2019. No. at 34; accord Doc. (Doc. at 30. That same day, Meyer and Nanula had a phone call regarding the terms under which the Concert Defendants would purchase Philmont Club. (See Doc. No. j (emphases added); see also Schutter, 2008 WL 2502132, at *6; Youndt, 868 A.2d at 551. (Id. No. at 51; see also Doc. Plotnick testified that he spoke with Meyer that same day and that Meyer told him PCC was under contract to sell the Property. Nonetheless, even finding that Concert Defendants actively concealed their relationship, there is no evidence that this relationship was material information that deceived PCC into entering into the PSA. ), Age Discrimination in Employment Act (ADEA) - 29 USC 621-634 Nanula wrote, If so, great - we will move ahead on our club deal, and start working with you on the real estate deal. (Id.) No. So getting them to back off to a small fee will be difficult. (Id. No. . No. 116-9, Ex. at 83 (On December 12, 2016, Nanula met with members of Philmont at the Club and made a power point presentation relating to CGP's proposal to acquire the Club.).) Any unauthorized use of mctlaw is expressly prohibited. Court issues its ruling saying that The Class did not present enough evidence to prove that PGCC breached its contract with the members of The Class. By continuing to use this website, you agree to UniCourts General Disclaimer, Terms of Service, No. At the conference, Plotnick expressed interest to Brown about a potential transaction between PCC and Ridgewood. No. To the contrary, the record shows that PCC was aware that CGP, a golf operator, would want to partner with a developer to develop the Property, that PCC's then-President had passed along the information for a potential developer, and that under the terms of the PSA, the second phase of capital improvement projects would occur only after the sale of the developed Property. 56(a). Ridgewood appears to argue that Pennsylvania law applies. Mindful that is not dispositive, see id., cmt. The AOS provided NPT with a 90-day due diligence period, during which time NPT had the right to terminate the AOS for any reason. At the conclusion of the meeting the Seller agreed to a minimal reduction in the sales price and unfortunately, without an Amendment to the LPA, we are forced to provide you this notice. (Id.) (Id.) No. at 42:2 7.) . In re Rumsey Land Company, LLC is instructive as to whether the Ridgewood Defendants were parties to a business transaction under 551. No. Financial terms of the transaction were not disclosed. No. A at 190.) K.), NPT cites an unsigned Third Amendment to the LPA, which was circulated on September 26, to support its assertion that NPT and NVR eventually did come to an understanding. (See Doc. Nanula decided it was time for Ridgewood and CGP to paper our deal on the real estate opportunity and asked Plotnick to send him his tweaks to CGP's counter-proposal. Nos. No. Oct. 16, 2018) ([T]he Court holds that Diversified's no damages' argument does not support granting summary judgment to Diversified as to Stevenson's breach of contract claim.); Fagal v. Marywood Univ., Civil Action No. (See Doc. However, the Court permitted the fraud claim against CGP and Nanula to proceed to the extent it was based on the representation that they would spend $5 million in capital improvements. (Id. When I say they went to bat for methis Law Firm literally did just that. 116-19, Ex. Pa. 2013) (Haywood's motion for summary judgment must, therefore, be denied because the University, if it proves the other elements of a claim for breach of contract, may be entitled to nominal damages.). . No. 100-5, Ex. Because a party to a transaction is broader than a party to a contract, the fact that CGP and Nanula were not parties to the PSA is not dispositive. Plotnick also proposed that [u]pon the sale of the real estate, the net proceeds [would] flow through the following waterfall: [f]irst, 60/40 (Concert/Ridgewood) until all out of pocket costs have been returned to both parties; [s]econd, 100% to Concert for the next $7MM. A (The purchase price for the Property shall be Twelve Million, Two Hundred Thousand and no/100 Dollars ($12,200,000) assuming a yield of one hundred sixty-two (162) single family market rate semi-attached residential townhome fee simple footprint lots.).) at 2-3 (The primary motivation behind my resignation has been Concert Golf's refusal to respond to my repeated requests (i) to confirm in writing . Once the moving party has met its burden, the nonmoving party must counter with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Ultimately, the Seventh Amendment to the AOS that was executed did not include any purchase price adjustments and merely extended the due diligence period to September 16, 2016. (Doc. 116 at 27 (citing Ex. and then Concert told Ridgewood to stay down, therefore, not to have potentially two people interested in Philmont, that would have changed [his] opinion of the transaction. 2014)); see also id. 100-18, Ex. [I]f you knew that Mr. Nanula was promising to spend $5 million to you, but in reality he was planning to actually spend less than $5 million, would you have still voted to sell the club to Concert Golf? . Theyre suing both PGCC and Concert Plantation LLC, a subsidiary of Concert Golf Partners that purchased PGCC in 2019. (ii) to honor its commitment to retain 9 holes of the South Course (or to at least offer an acceptable alternative in light of its refusal to comply with the terms of our Agreement of Sale regarding the South Course), (iii) to provide evidence of the capital it has spent to date, (iv) to provide evidence of its retention of the capital reserves generated as a percentage of Member revenues as required under our Agreement of Sale, and (v) to create and implement a business plan that honors its obligations under our Agreement of Sale to return Philmont to an elite' country club status.).) Pennsylvania. The Court dismissed the fraud in the omission and fraudulent concealment claims, determining that Defendants did not owe PCC, which was a sophisticated entity engaged in an arms-length business transaction, a duty to speak. (Id.) We disagree. (emphasis added). 149-1 at 48; see also Doc. Not interested).). 8:19-CV-02344 | 2019-09-20, U.S. District Courts | Other | (Doc. ), Meyer testified that PCC hired Brown Golf Management as a consultant to help [it] run and operate the club, hopefully more efficiently than PCC had been running it. Co. v. Coutu, Case No. (Doc. . All of these ball drops' as Peter Nanula would refer to them, along with the disregard to the contract (60 Acres of Land vs 80, Modern Clubhouse Standards, Outings during off-peak times, and $5M of improvements [I'd be shocked if half of that was spent with the patchwork that has been done to date]) have brought me to my design [to resign. at 5357.) (See Doc. In arguing that CGP and Ridgewood's relationship was a fact basic to the transaction, NPT cites only to Meyer and Silverman's testimony. Although Williams did not have a contractual relationship with Ross, Williams cannot detach Ross from his status as an agent for Ladbrokes. ), On September 23, 2016, Plotnick emailed Meyer to discuss a potential relationship at Philmont. (Doc. (If the facts of a particular claim establish that the duty breached is one created by the parties by the terms of their contract . . See 66 F.3d at 611. A; see also Doc. No. (Id. but in reality he was planning to actually spend less than $5 million, would you have still voted to sell the club to Concert Golf? Cases involving employment discrimination (gender, age, religion, etc. A.) at 45:23-47:2. (Doc. Shortly after the visit, Plotnick emailed Meyer, stating, Thanks again for taking the time to speak with and tour Jonathan and I [sic] today. The Court also dismissed the civil conspiracy claim because NPT failed to plead actual malice. (Doc. 149-1 at 131. No. . 12 to Ex. at 198:3-199:1.). 22 to Ex. ), Plotnick also suggested that $5 million from the sale of the Property be reinvested in Philmont Club as capital expenditures. (See Doc. No. 5 to Ex. (Doc. 14 to Ex. Nanula also stated that he would work on a preliminary proposal to share [that] week. (Id.) No. Meyer immediately forwarded to Silverman, stating, Hot off the press. No. S.) Stallone stated, Yes, but that was with all the environmental and zoning contingencies that you said the club was no longer interested in accepting. (Id.) No. To that end, the crux of the original fraud claim pertained to Ridgewood and CGP's alleged misrepresentations as to the riskiness of developing the Property, not capital expenditures. 17 to Ex. 53 at 53 (Because CGP and Nanula were not parties to the PSA, the integration clause does not apply to them and NPT's fraud claims against them survive the motion to dismiss.)), courts have stated that an individual can be a party to a transaction for purposes of 550 and 551 liability even if they were not a party to the contract itself. The due diligence period was set to run from July 23, 2015 through October 21, 2015. (Doc. (Id.) No. No. 100-26, Ex. However, at the end of his email, Nanula wondered, why do we need Ridgewood at all? at 1265. Aug. 14, 2012) ([C]ommon-law fraud includes acts taken to conceal, create a false impression, mislead, or otherwise deceive in order to prevent the other party from acquiring material information. In so arguing, NPT misconstrues the Court's prior ruling at the motion to dismiss stage. Sections 5.5(h) and 5.5(k) of the PSA provide (1) Concert Philmont LLC will cause to be completed, and pay the costs of completion of, the [Initial Capital Projects] currently estimated by the Parties to cost approximately FOUR MILLION AND NO/100 DOLLARS and (2) Concert Philmont LLC will cause to be completed, and pay the costs of completion of, the Phase II Capital Projects currently estimated by the parties to cost approximately FIVE MILLION AND NO/00 DOLLARS. (Doc. It will be paid in installments as summarized below but 100% of the money is guaranteed with no contingencies on Township approvals or environmental issues. Tom Kubik, the president of Plantation Golf and Country Club, told the Venice Gondolier Sun that inaddition to the reinvestment program, CGP willimmediately redeem all resigned member equity, exchanging current member equity redemption rights for those improvements.The full article about the sale of PGCC is availablehere. I said no; about $5m is all we could afford to plow back. 7 at 426:12-15.) A. ), About a week later, on September 14, NPT provided NVR with formal notice of [its] intention to terminate the AOS. (See Doc. 100-8, Ex. A (Eighth Amendment to the AOS, extending the due diligence period from September 16, 2016 to September 26, 2016). . 16 (October 19, 2018 resignation email from Mitch Russell, stating, There is no regard for the agreement between Philmont and Concert golf [sic] and I will clearly go on the record of saying Concert stole Philmont and to date has yet to live up to any of the declarations in the agreement . . In their motions for summary judgment, Defendants argue that: As assignee, NPT asserts a fraud claim against the Concert Defendants, which arises out of affirmative misrepresentations CGP allegedly made to PCC concerning capital expenditures. Holdings, LLC, Civil Action No. No. Really like that we are planning on utilizing 1 clubhouse and not 2. (emphasis added)).) (See Doc. No. The Class is defined as: All individuals (or their guardians or representatives) who had an effective resigned equity membership before April 1, 2016, and who have not received their full refund amount., Written Order granting Class Certification issued. Civil Action 19-4540-KSM (E.D. No. No. Notably, Defendants fail to cite to any applicable case law to support their position. (emphasis added)).) (See Doc. 149-1 at 161, 42.) Concert Golf acquired 36-hole, 295-acre Philmont, which was founded as an all-Jewish club in 1906, in February 2017 in a deal that involved the payoff of the clubs debt and other commitments and bought White Manor CC under a similar arrangement at the end of 2016, the Inquirer reported. 100-5, Ex. Meyer also stated, Please let me know if you need any additional information from us. (Id.) 647, 654 (E.D. Was thrilled that there were going to be one owner who wanted to integrated homes into club. In sum, even when viewing the evidence in the light most favorable to Plaintiff, the Court cannot conclude that CGP and Ridgewood's relationship-and the fact that the pair would profit from that relationship-was a fact basic to the transaction. However, it may take years before a resigned member actually gets their check. 116-4, Ex. ' Matsushita, 475 U.S. at 587 (citation omitted). A.) (Id. United States District Court, E.D. To get in contact, fill out the form below, or call 888.952.5242. No. Throughout its response, Plaintiff emphasizes the distinction between fraudulent concealment under 550 and fraudulent nondisclosure under 551 and the fact that a duty to disclose is only required under 551-not 550. (Id. . A does not disclose to B the fact that no highway is actually planned. ), NPT. Ruling favors golf club in lawsuit filed by former members 124-1 at 8. ), J. PCC Decides Not to Pursue a Deal with NPT. Nanula noted that Ridgewood had been talking to [the] Club about buying the 9 holes for $5-6m but they need a credible golf operator to sell the members on this and that he told them to back off completely so I can buy the whole Club and then deal them in as our real estate partner. (Id.) (Doc. No. PGCC and Concert file their reply objecting to the request for rehearing by The Class. 22-2596 | 2022-08-29, Palm Beach County 15th Judicial Circuit Courts | Civil Right | (Doc. is the critical determinative factor in determining whether the claim is truly one in tort, or for breach of contract); id. 100-28, Ex. at 65-67.) But the allegations in the initial Complaint are fundamentally different from those alleged in the Amended Complaint, which was filed after the Court ruled on Defendants' motion to dismiss and is the current operative complaint. ), Ridgewood. Scrape $2.5m here.').) (Id. In a November 1, 2021 ruling, Judge Andrea McHugh, a Florida circuit court judge, granted class-action status to the suit by former members against the club and Concert Plantation, LLC. at 29:15-31:10.) 17-cv-00209-RM-NYW, 2015 WL 1517022, at *4 (D. Colo. Mar. Because NPT was unable to terminate the AOS with PCC without NVR's written consent, it asked NVR to determine whether it would consent or whether it would prefer for NPT to assign the AOS to NVR. ; see also Doc. 2003). The Club at Renaissance, Concert Golfs most recent acquisition, is located within an exclusive South Florida community. Founded Date 1986. NN at 267:21-268:1. 100-35 at 25-27.) NPT follows this by saying, There is no dispute that the Defendants did not disclose their relationship or [sic] working together to Philmont NPC. (Doc. Concert Golf Partners will not require residents to be club members. 100-5, Ex. The Augusta NPT opposes the motions. CC (describing CGP as a boutique private club owneroperator). Next, the Concert Defendants argue that summary judgment is appropriate on NPT's 551 fraudulent nondisclosure claim because they did not owe PCC a duty to speak. Club owneroperator ). contract to sell the Property be reinvested in Club. 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